The Polish government adopted a draft amendment allowing courts to review prosecutors’ decisions to deny access to counsel for witnesses during questioning.
Changes to the Code of Criminal Procedure and Criminal Fiscal Procedure
The draft amendment modifies the Code of Criminal Procedure and the Code of Criminal Fiscal Procedure.
Current Appeal Process and Proposed Changes
Currently, if a prosecutor denies access to counsel (e.g., a lawyer) for a non-party witness, an appeal can only be filed with a higher-level prosecutor. The amendment would allow such appeals to be heard by a district court in the jurisdiction where the proceedings are taking place, introducing independent judicial oversight.
Rationale for the Amendment
The change responds to concerns raised by the Ombudsman and legal experts. The government stated the new rules strengthen judicial oversight of the prosecution and provide citizens with additional protection of their rights.
Timeline for Appeal Review
The court will have seven days to review the appeal from the moment it receives the case. The prosecutor’s decision to deny counsel will not be enforceable until it becomes final, with exceptions for urgent matters or significant investigative interests.
Connection to the Barbara Skrzypek Case
The amendment was partly prompted by the death of Barbara Skrzypek, a long-time associate of PiS leader Jarosław Kaczyński, who died after being questioned as a witness in an investigation involving a PiS-linked company. PiS politicians believe a connection exists between the questioning and her death. During the questioning, prosecutor Ewa Wrzosek denied Skrzypek’s counsel, Krzysztof Gotkowicz, access, while allowing counsel for the other party to be present.
Investigation Closure and Justification for Changes
An investigation into the unintentional causing of Barbara Skrzypek’s death was closed, concluding that no third-party actions occurred, the death resulted from a heart attack, and stress from the questioning did not contribute. The amendment’s justification highlights that denying access to counsel effectively denies a person’s interest in the proceedings and impacts their ability to protect their rights.
Constitutional Guarantees and Judicial Review
The proposed change includes provisions for appealing a prosecutor’s decision to deny access to counsel to a district court. The court must review the appeal promptly, within seven days of receiving the case and all necessary documents. The prosecutor’s decision will only be enforceable after it becomes final, following judicial review.
Exceptions for Urgent Matters
Exceptions will be made for urgent situations or when a significant investigative interest exists, allowing the prosecutor to proceed with witness questioning without counsel present before the appeal is resolved.
